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People v. Fisher7/5/1988
r deliberation is not required. Washington v. People, 158 Colo. 115, 405 P.2d 735 (1965), cert. denied, 383 U.S. 953, 86 S. Ct. 1217, 16 L. Ed. 2d 215 (1966). Evidence which would be inadmissible at trial may be presented at the preliminary hearing. Williams, 628 P.2d at 1014.
To resolve the question before us, we must determine whether there is sufficient evidence in the record of the preliminary hearing, when viewed in a light most favorable to the prosecution, and making inferences from conflicting evidence in favor of the prosecution, "to induce a person of ordinary prudence and caution to a reasonable belief that the defendant committed the crimes charged." Id.
To meet a charge of second degree murder, it must first be shown that the death was "more than merely a probable result of defendant's actions." Mingo, 196 Colo. at 318, 584 P.2d at 633. The judge heard the following testimony at the preliminary hearing. Police officers responded to a call of a shooting and arrived at the defendant's home to find the victim in the front room of the house. The victim had been killed by a bullet which had entered through his right armpit, traveled through his body, and lodged in his left hip. The pathologist's finding was that the gunshot wound was the cause of death. A second bullet was found lodged in the ceiling in the same room. A gun with two spent shells and four live rounds was found at the shooting scene; the hammer of the gun was in a cocked position.
The result of the nitrate pattern examination was that the muzzle of the weapon was more than three feet from Vizina's body when the weapon was fired. The result of a gunshot residue test on the victim's hands was negative, "indicating he had not fired a weapon." The result of a gunshot residue test on the defendant was inconclusive. However, the detective testified that "Ms. Fisher did have residue on the back of her left hand" and explained that " person would have to hold that gun in their hand at the time of firing it to have any residue on the back of their hand." A blood alcohol test performed on the victim showed that Vizina had been intoxicated, and the detective testified that the defendant appeared to be "somewhat intoxicated."
During the preliminary hearing, the videotape of Fisher's second statement was entered into evidence and viewed by the county court judge. During this statement, which was about twenty minutes long, the defendant explained that she had gone to the recreational vehicle and brought the weapon in the front room, where she and the victim proceeded to hand it back and forth until suddenly she heard a loud boom and realized that the victim was bleeding. She stated that she did not know what had happened, but that Vizina had repeatedly asked her to kill him. Penington testified about certain discrepancies between Fisher's first and second statements to him.
It can reasonably be inferred from this circumstantial evidence that the defendant did not shoot himself, and the only other person present in the room was Fisher. In Mingo, we held:
Regarding the first factor, it is obvious that a jury could reasonably conclude that discharging a gun from a distance of three feet creates such a high probability of death that death was practically certain, not merely a probable result.
Id. at 318, 584 P.2d at 634 (emphasis added). Viewing the circumstantial evidence in the light most favorable to the prosecution, and resolving conflicts in testimony in favor of the prosecution, we conclude that these facts support a reasonable belief that Vi
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